If anything, Thornberry's case is more susceptible to charges of cronyism than Fortas's. In 1948, when Johnson joined the Senate, Thornberry became Congressman in Johnson's place. For fifteen years, until he retired to accept a District Judgeship in late 1963, Thornberry held the central Texas seat, and remained a good domino-playing friend of Johnson's. As a Senator, and later as Vice-President, Johnson often referred to him as "my congressman."

During the later part of his term, and particularly during the three years of the Kennedy-Johnson administration, Thornberry began to establish a reputation for himself as a "Southern moderate." He had voted against most of the watered-down civil rights measures of the fifties, and tended to vote with the "conservative coalition" more often than not during that time, but he avoided the rabid racism and extreme conservatism of the deep Southern block.

As a member of the key House Rules Committee under Kennedy, he enhanced his reputation as a moderate by being the only Southerner to side regularly with the administration. But he never declared himself in favor of the most important measure to come before the Committee during his tenure--the Civil Rights Bill of 1964. As administration representatives diplomatically put it, they hoped they wouldn't have to depend on the votes of Thornberry or any of the other "Southern moderates."

As a judge on the Fifth Circuit Court, Thornberry retained his image as a "moderate" largely by contrast with his peers. When Johnson appointed him to the Fifth Circuit, in 1965, he also appointed former Mississippi Governor J.P. Coleman, who drew all the fire from civil rights organizations for being a racist, and for having supported segregationist legislation during his term as Governor. Thornberry, in the shadows then as he has been this year, was quietly accepted.

The bland Times editorial this June supporting Thornberry's nomination referred to his Southern origin and his moderation four separate times, as if that unlikely juxtaposition would suffice to insure his vote for the forces of sanity and enlightment. The Times concluded that Thornberry's appointment would keep the Fortas court "firmly cemented into the liberal posture that was characteristic of the Warren court." One Southern legislator with a better conception of the meaning of "moderate" in the South commented simply: "It looks like a pretty good deal to me. Okay, so we let Fortas become Chief Justice. In return, we get a moderate on the Court."

The fear that a Nixon appointment may mark a turn away from the relative enlightenment of the Warren Court is certainly warranted. A Thurmond Court, say, could bring the Supreme Court firmly in line with a conservative administration and Congress. But the assumption that a Fortas Court, with Thornberry the moderate, would continue and build upon the work of the Warren Court is knee-jerk liberalism in the grand old style.